In Klein v. Klien, filed October 3, 2023, husband argued on appeal that the trial court erred in failing to include in the calculation of wife’s income for the purpose of setting child support amounts she received when she withdrew funds from a retirement account. Wife testified that she “cashed in an annuity in order to pay off some of [her] bills and credit card debt that [she] had as mostly legal fees and some other purchases.” She withdrew the funds in 2020. The child support hearing was held in June 2021.
Continue ReadingSearch Results
Keywords: Rule 59
-
-
2023 Child Welfare Legislative Changes
As the 2023 Legislative Session continues, many session laws that amend child welfare statutes, including abuse, neglect, dependency; termination of parental rights (TPR); adoption of a minor; and foster care licensing became effective on various dates. Some of these changes are significant. Some session laws focus on specific statutory changes involving an individual juvenile or family; other session laws make changes to state systems. Continue Reading
-
S.L. 2023-106: Parents’ Rights, Who Is a Parent, and Juvenile Abuse, Neglect, and Dependency Cases
This blog was updated on October 3, 2023 to incorporate amendments made by the 2023 Appropriations Act (S.L. 2023-134). The changes are in italics.
On August 16th, the legislature used an override of the Governor’s veto to pass S.L. 2023-106 (S49), a law enumerating the rights of parents regarding their children’s education, health care, and mental health needs. But in addressing a parent’s rights, the law contains some exceptions when the child is alleged to be abused, neglected, or dependent. Notably, the new law defines “parent” as “any person with legal custody of a child, including a natural or adoptive parent or legal guardian.” In cases where a department of social services (DSS) has filed a petition alleging a juvenile is abused, neglected, or dependent, DSS may obtain custody of the juvenile, or the court may ultimately award legal custody or guardianship to a person who is not the juvenile’s parent. As a result, the new law impacts abuse, neglect, and dependency cases. This post discusses the new law as it relates to abuse, neglect, and dependency cases only and is not a comprehensive discussion of the new law generally. Continue Reading
-
The Adolescent Brain and Mens Rea
Delinquency adjudications and criminal convictions of minors who have been transferred to Superior Court for trial as adults both require that the elements of the offense charged are proved beyond a reasonable doubt, including that the required criminal state of mind, or mens rea, existed. The adolescent mind has been the subject of substantial scientific research. This research grounded several United State Supreme Court decisions related to criminal punishment of minors and when Miranda warnings are necessary. However, the question of how the science of adolescent brain development does or does not connect to the mens rea requirements of various offenses is not well litigated. The North Carolina Court of Appeals dipped a toe in this area in its recent ruling in State v. Smith, __ N.C. App. __ (June 6, 2023). Continue Reading
-
Is NC’s Disorderly Conduct at Schools Statute Unconstitutionally Vague?
***This post was written by my colleague Phil Dixon. You can contact Phil at dixon@sog.unc.edu
I started wondering about that question after reading last month’s decision by the Fourth Circuit Court of Appeals in Carolina Youth Action Project v. Wilson, 60 F.4th 770 (4th Cir. 2023) (summarized here). There, the court struck down two South Carolina state laws aimed in large part at regulating conduct and speech in and around schools. The laws at issue there are similar to our version of disorderly conduct by disrupting schools. This post examines the holding of Carolina Youth Action Project and its potential implications for North Carolina law.
Continue Reading -
Incapacity to Proceed (G.S. Chapter 15A) and Incompetency (G.S. Chapter 35A): Apples and Oranges?
Incapacity to proceed under North Carolina General Statutes (G.S.) Chapter 15A and incompetency proceedings under G.S. Chapter 35A involve, at least in part, a court inquiry into someone’s cognitive abilities. Incapacity to proceed is narrowly focused on a person’s cognition within a criminal legal proceeding. Incompetency is a bigger picture analysis, more broadly focused on the individual’s life and needs, with a bit of forward-looking involved. In that way, incompetency is concerned with both a person’s cognitive abilities and their functioning.
These proceedings are separate and distinct from one another. Yet, if a client has history or present involvement in both, the client’s attorney in one proceeding should know about and understand the other. That attorney may want, for example, to access information or introduce evidence from the other proceeding. The attorney will want to consider issues such as information sharing and confidentiality, and the admissibility or other uses of records from one proceeding in the other.
These issues may be the subject of future posts. First, however, we need to understand incapacity to proceed under G.S. Chapter 15A and incompetency under G.S. Chapter 35A. This post provides a primer on incapacity and incompetency proceedings and compares the standards for each. Continue Reading
-
When can a judge sign an order or judgment for another judge?
Civil orders and judgments frequently are not entered immediately upon the conclusion of an evidentiary trial or hearing; judges often need time to consider complicated or extensive evidence to decide how to rule, and civil orders and judgments frequently require extensive findings of fact and conclusions of law which take time to reduce to writing. Regardless of what a trial judge may say at the end of an evidentiary trial or hearing, a civil order or judgment is not entered until it is reduced to writing, signed by the judge, and filed with the clerk of court. GS 1A, Rule 58.
Continue Reading -
Almost Everything, But Not Quite: What’s a General Appearance Again?
This blog post considers yet another aspect of personal jurisdiction, or the authority of a court over the parties before it. One of the elements of personal jurisdiction is effective service of process—the service of the documents initiating a civil lawsuit. Objections to a court’s exercise of personal jurisdiction because of a defect in service of process are extremely common, as are other defenses challenging personal jurisdiction. A party can waive these defenses, however, by making what is termed a general appearance in the matter. A recent case in the North Carolina Court of Appeals, Blaylock v. AKG North America, affirmed the dismissal of a civil lawsuit because of a failure to achieve service of process. In doing so, it answered a question of first impression regarding general appearances and personal jurisdiction—specifically, whether notice of removal of a case to federal court qualifies as a general appearance.
Continue Reading -
Juvenile Sight and Sound Separation in Court Holding Facilities
The legal requirement for sight and sound separation between juveniles and adult inmates states that “juveniles alleged to be or found to be delinquent or juveniles within the purview of paragraph (11) will not be detained or confined in any institution in which they have sight or sound contact with adult inmates.” 34 U.S.C.A. §11133(a)(12)(A). It may be somewhat intuitive to understand how this requirement applies in settings where adults are detained for long periods of time—such as jails and lockups. The application of this requirement in court holding facilities may be less intuitive. This post explains how sight and sound separation applies in the context of the courthouse. Continue Reading
-
More on Single Protective Arrangements and Single Transactions under G.S. Chapter 35A
Recently, the School of Government offered a webinar on single protective arrangements and single transactions under G.S. 35A-1121, which was enacted into law by Session Law 2021-53 and applies to proceedings initiated on or after October 1, 2021. Meredith Smith and Timothy Heinle of the School of Government joined Catherine Wilson, an attorney with McPherson, Rocamora, Nicholson, Wilson & Hinkle, PLLC, and Matt Kraus, legal counsel with the N.C. Administrative Office of the Courts, to discuss some of the key questions and issues raised by this new law. Clerks of superior court, guardian ad litem attorneys, private attorneys, and directors, attorneys, and social workers from various departments of social services across the state participated in the webinar.
A recording of the webinar can be found here, where the presentation can be viewed for free. In the coming weeks, the video will be added to the online training library for the SOG’s Public Defense Education group, which will offer the option of purchasing access to the webinar for CLE credit.